When it comes to gay marriage, there’s hardly any suspense about what the Supreme Court will do when its term ends later this month. The question seems to be not if the justices will recognize a constitutional right to same-sex marriage, but how. Will Justice Anthony Kennedy write the final installment in his “dignity”-infused tetralogy of gay rights decisions? Will the call of history tempt Chief Justice John Roberts to sign on to a narrower opinion on sex discrimination grounds? These questions, however, skip over the justices’ uncanny tendency to surprise. And the surprise here could involve not deciding the marriage question at all—while still handing gay rights supporters a victory bigger than marriage, giving conservatives more time to come around to the inevitable, and protecting the court from political backlash.
The potential for this particular surprise lies in the way the gay couples in Obergefell v. Hodges have asked the court—with the support of the federal government—to decide the case. They’re seeking not just the recognition of a constitutional right to same-sex marriage, but a decision doing so on the basis of a legal doctrine called “heightened scrutiny.” Because the appellate court that decided Obergefell did not apply heightened scrutiny, the justices could decide only that heightened scrutiny should have been applied and then send the case back to the lower court to determine whether banning gay marriage survives under that standard. The justices did something similar two years ago in an affirmative-action case—with seven of the nine justices signing on—and could do it here, too.* If they do, it could prove to be a win-win-win.
For starters, a decision applying heightened scrutiny would be an unprecedented triumph for gays and lesbians. The label refers to a more muscular form of judicial review—the kind laws that distinguish on the basis of race and gender receive. Because heightened scrutiny applies to these and a handful of other “suspect classifications,” the government must provide a compelling reason to justify any distinction it seeks to make along those lines. For all other kinds of differentiation, a law is presumed to be constitutional and even the barest of reasons suffice to uphold it. As Judge Jeffrey Sutton, who wrote the opinion for the 6th Circuit Court of Appeals ruling against the gay couples, explained, “So long as judges can conceive of some ‘plausible’ reason for the law—any plausible reason, even one that did not motivate the legislators who enacted it—the law must stand, no matter how unfair, unjust, or unwise the judges may consider it as citizens.” As a result of this milquetoast form of judicial review, a law that treats gay people differently than straight people gets the same deference from judges as one that treats opticians differently from ophthalmologists. Gays have been winning at the Supreme Court despite this nonsensical and deeply unfair approach only because Kennedy has consistently ruled in their favor while dodging the scrutiny question. Unlike its sister courts of appeal, the 6th Circuit took the dodge at face value.
An explicit decision requiring heightened scrutiny would change things in an instant. It would hardwire into the law—and our broader legal culture—the recognition that distinctions on the basis of sexual orientation are almost always invidious and wrong. Governments would have to offer an especially strong justification before they could treat gay people differently, just as they’re required to do if they treat people differently on the basis of their race or gender. The result would resonate far beyond marriage, whether a party in court tried to eliminate a potential juror merely because he is gay or a state sought to restrict adoption by same-sex parents. Simply put, for gay rights advocates, if marriage equality is the battle, heightened scrutiny is the war.
But gays and lesbians wouldn’t be the only ones who stand to benefit. The court’s focus on striking down anti-gay legislation in recent years as the result of irrational “animus” has led to charges, rightly or wrongly, that the majority is tarring those who oppose marriage equality with “the brush of bigotry,” as Roberts put it in a recent dissent. There is no doubt that some opposition to marriage equality is fueled by bigotry. But other opponents of same-sex marriage are decent people—friends, neighbors, colleagues, and perhaps even family members—who have sincerely held traditional views that may take time to evolve. Casting judicial decisions in favor of gay rights in terms of heightened scrutiny would leave more room to respect the view of those on the losing side. Under heightened scrutiny, a decision in favor of marriage equality wouldn’t mean the dissenters are irrational hatemongers—only that their reasons aren’t strong enough to justify trumping the constitutional rights of their fellow citizens.
Resisting the urge to nationalize gay marriage this summer may also prove to be the more prudent path for the court itself. Perhaps fearing political backlash to such a decision, liberal lioness and same-sex wedding officiant Justice Ruth Bader Ginsburg joined four other justices in punting on the question just two years ago. She seems to have since changed her mind, believing that Americans are now ready for gay marriage. That may well be true and, for a variety of reasons, Obergefell may never prove to be the lightning rod for conservative hostility that Roe v. Wade has become in the abortion context. But a decision focused solely on heightened scrutiny diminishes the risk, since a strong majority of Americans already support that kind of protection for gays and lesbians. And if the justices send the case back to the 6th Circuit, that court will almost certainly rule in favor of same-sex marriage eventually, and other circuits will steadily reach the same conclusion over the next year or two, providing more time for support for marriage equality to grow, as it has consistently done in recent years. The issue will probably never come back to the justices. Instead, their last word on the topic will have been an opinion that recognizes gays and lesbians as equal members of American society—and requires that they be afforded constitutional protection on that basis. One hopes that more than five justices can find the empathy to get behind that conclusion.
Although the Hawaii Supreme Court did something similar in 1993, the odds of it happening here are probably slim. The liberal justices and Kennedy seem ready to embrace marriage equality, and the conservative justices are likely wary of signing on to the heightened scrutiny half-step for fear of the consequences for religious liberty, even though the nation’s most prominent religious liberty scholar has argued reconciliation is possible. The notion of “tiers of scrutiny” has also gone the way of the dodo, and the court hasn’t recognized a new suspect classification since 1977. All that probably means a gay marriage decision that delivers the right result with fuzzy reasoning, much like earlier decisions. Still, the justices are always capable of surprise—and this wouldn’t be a bad one.
*Correction, June 18, 2015: This post originally said that eight Supreme Court justices signed on to an affirmative-action decision in 2013. In fact, seven justices signed on; Justice Elena Kagan was recused from the case.